Public Servant Reinstated After Being Fired for Breast Touching

- Tuesday, May 13, 2014

In a recent court ruling the Industrial Relations Commission of NSW decided that a NSW public servant who was dismissed for inappropriate touching should be given his job back. The policy officer for the NSW Attorney General and Justice Department lost his job in 2012 after touching the breasts of five women during a Christmas party. He was also found to be in breach of confidentiality and recruitment policies after he revealed to a colleague that she had been unsuccessful in a recent job application.

Reasons for the decision

The ruling to reinstate the employee was based on a couple of different factors. In the investigation, the NSW IRC found that the employee who was dismissed was treated significantly more harshly than a senior manager who touched the breasts of two women at the same function.

During the time leading up to his dismissal, the policy officer had also presented a number of mitigating factors and arguments which it was found were not given due consideration. These included the level of his remorse, his belief that he had obtained consent and the fact that the incident was a one-off. On the day of the function, the policy officer had consumed a large amount of alcohol before attending the event and he stated that this was largely due to personal issues he was going through at the time.

The senior manager who had behaved in a similar manner at the same function was only demoted even though complaints suggested that the impact on the victims was more significant from the inappropriate touching by the senior manager than from the employee. The senior manager also denied all the allegations while the policy officer admitted to them and expressed remorse throughout the process.

After comparing the responses to the two men, Commissioner Anne Tabbaa ruled that dismissing the policy officer, when compared against the demotion of the senior manager, was overly harsh.

Reinstatement not always an option

Although reinstatement is not always considered appropriate in these situations, in this particular case it was an option due to the fact that the policy officer had maintained good relationships with other employees during the period between the incident and his dismissal. He had also carried out all his required duties during this time and had excellent character references.

Another reason for the policy officer’s reinstatement was that he had demonstrated remorse and shown willingness to be subject to disciplinary measures which included demotion to a lower pay grade and attending relevant sexual harassment training. It was also made clear that he had been embarrassed and humiliated by his actions and the consequences would remain with him for a long time. In addition to the other disciplinary measures, he agreed to have a warning letter placed on his file and to provide a written apology to each of the complainants.

The policy officer had worked with the department for 20 years and during that time took on various HR duties although he was never directly responsible for managing employees. During this time there had been no previous instances of him engaging in inappropriate behaviour.

Standardised procedures are vital

This case demonstrates the importance of creating standardised disciplinary procedures which apply equally to employees at all levels of an organisation. Even though the policy officer in this matter behaved in a manner that was a breach of the department’s code of conduct and ethics and its dignity and respect policy, the fact that he was dealt with so differently to his more senior colleague was considered unfair by the NSW IRC.

What is Workplace Bullying

- Tuesday, April 22, 2014

Workplace bullying has been identified as a serious problem in a large number of Australian organisations. According to a recent report produced by government organisation Safe Work Australia, workplace bullying affects between 3.5% and 21% of the Australian workforce and costs businesses and organisations around $6 billion a year.

Although “bullying” is a commonly used term, it is often misunderstood when used in the context of the workplace. Here is a brief overview of workplace bullying, what it means and the impact it can have on individuals and organisations in Australia.

What behaviour is classified as bullying?

Workplace bullying is broadly defined as repeated behaviour towards an employee or a group of employees which is unreasonable and creates a risk to their health and safety. Although the traditional view of workplace bullying is that of a manager harassing a subordinate, bullying can take place between co-workers of equal seniority or can be undertaken from a lower ranking employee towards a more senior employee.

Workplace bullying doesn’t include reasonable management direction and disciplinary action which is in line with reasonable company policies. Other types of workplace harassment including discrimination, sexual harassment and workplace conflict are not usually included in the definition of workplace bullying and can be dealt with separately or alongside bullying allegations.

What are the consequences of workplace bullying?

Workplace bullying can have severe consequences both for the individual/s involved and for the organisation as a whole. Some of the consequences for victims of work place bullying include: • Stress • Mental health issues including anxiety or depression • Loss of motivation • Effects on other areas of life including relationships, family and study • Physical health problems including headaches and back and neck problems • Sleeplessness • Loss of confidence • Isolation

As well as directly affecting the victim, workplace bullying also has consequences for organisations including: • Increased absenteeism • Reduced productivity • Higher staff turnover • Increased recruitment and training costs • Low staff morale It’s in everyone’s best interests for employers to take a proactive approach to preventing workplace bullying. As well as developing anti-bullying policies and staff training, make sure that as an employer you respond quickly to any allegations of bullying among your employees.

In recognition of the widespread issues caused by workplace bullying, the Fair Work Commission has recently brought new legislation into effect which makes workplace bullying unlawful. From January 1, 2014, workers who feel they are being bullied can lodge a complaint directly with the Fair Work Commission who can make whatever order it feels necessary to provide redress.

Matters concerning workplace bullying allegations can often be dealt with internally but if the allegations are severe or involve senior management it may be necessary to involve an external investigator. Our workplace investigators are highly experienced in cases of alleged workplace bullying and can help ensure a fair outcome and a quick resolution. Contact us today to find out more about what we can do to help you.

Changes to Anti Bullying Legislation: the Effects so Far

- Tuesday, March 25, 2014

New changes to workplace bullying legislation have so far showed underwhelming results according to a Fair Work Commissioner with the first substantive order under the new act being made almost three months after the new system came into effect. The changes were made to the Fair Work Act 2009 last year in response to the recognition of the prevalence of bullying and harassment in Australian organisations and took effect on January 1 this year. The impact of bullying is believed to cost Australian employers millions each year in absenteeism and lack of productivity.

The new laws mean that workers who believe they are being bullied at work can now lodge a complaint directly with the Fair Work Commission. The Fair Work Commission has been given the power to implement any remedy they believe appropriate apart from financial compensation to deal with specific incidents of bullying at work.

Although this new legislation came into effect at the beginning of the year, early reports show that there hasn’t been the anticipated dramatic increase in complaints lodged with the Fair Work Commission. However, it is still fairly early on and the number of complaints could rise in the future.

What has been done so far?

The first official ruling was made on March 21st by Lea Drake, Senior Deputy President of the Fair Work Commission and directions included prohibiting an employee to have any unaccompanied contact with a co-worker or making any comments about the co-worker’s clothing or appearance.

The decision was made after a conference on March 4 and directions also stated that the respondent (the employee accused of bullying) should avoid sending emails or texts to the co-worker except in an emergency, should complete any exercise undertaken at the employer’s premises before 8am and refrain from raising work related issues unless first notifying the Chief Operating Officer or his subordinate.

The applicant was also ordered not to arrive at work before 8.15am. The parties have both been given leave to have the matter re-listed for a later conference if there are any difficulties implementing the orders.

According to workplace tribunals commissioner Anna Cribb, there have been 66 bullying claims made so far under the new system, nine of which were withdrawn in the early stages. This is lower than the predicted 67 claims a week but there has been an element of confusion as to whether alleged acts of bullying committed before January 1 can be included in claims and this may have impacted the level of reporting.

What are the main types of claims?

The majority of claims made so far under the laws have fallen into one of two categories according to HR publication OHS Alert. According to Commissioner Cribb the majority of reports involve employees being bullied either by supervisors or managers or by a group of employees. There were also two cases of supervisors reportedly being bullied by employees.

Although the number of complaints lodged so far falls below what was anticipated, the bullying tribunal’s helpline has reportedly been receiving in excess of 200 calls per week.

How effective is the legislation in dealing with complaints?

It is believed that the Fair Work Act legislation regarding reasonable management action will apply in a significant number of workplace bullying allegations. Many of the applications made by employees regarding bullying by a supervisor are believed to fall into this territory with the need to clarify what exactly constitutes reasonable steps taken by management and what would be classified as harassment or bullying.

Other legislation involving bullying, notably workers’ compensation laws in different states, have clear exclusions as to what behaviour constitutes reasonable direction and disciplinary action by managers and supervisors. So far the Fair Work Act legislation has a certain amount of uncertainty around what behaviour is excluded from further action. It is believed that this could lead to employers being able to claim reasonable disciplinary action rather than bullying and therefore avoid further penalisation.

The Fair Work Commission has recently ruled that alleged bullying activities which took place before January 1 are admissible under the new scheme, and this could lead to an increase in the number of complaints lodged.

Is your business suffering from allegations of workplace bullying? Bullying can be difficult to determine and often an impartial investigator is the best way to ensure a fair result. Contact us today to find out more about what we do and how we can help you effectively deal with claims of harassment and bullying in your organisation.

Teacher Awarded Compensation over Twitter Defamation

- Tuesday, March 18, 2014

Workplace harassment can happen in a number of different environments, not just in the office as was upheld by a recent ruling in the NSW district court. In the first case of its kind, NSW teacher Christine Mickle successfully sued a former student for defamation via popular social media platform Twitter. The student was ordered to pay $105,000 in compensation for comments made on Twitter and Facebook.

Workplace harassment and bullying are a real issue for many employees. It can be extremely distressing for employees to be victims of bullying in the workplace but when this continues online over social media it can be even more devastating. Being harassed over the internet means that employees have no escape from bullying, even when they are at home, and with the widespread use of smartphones, negative and derogatory comments can follow them around wherever they go. The Twitter defamation case demonstrates that workplace harassment via social media is actionable and can have serious financial consequences for those who engage in it so it’s important that it is taken seriously.

Cyber bullying has been in the media for a number of reasons recently with calls for stricter laws governing the behaviour of cyber bullies and trolls along with increased awareness of the effect this type of harassment has on victims. In the case of Mrs Mickle, the effects of the defamation were described as ‘devastating’ and resulted in her taking an extended period of sick leave and only returning to work on a limited basis.

What is defamation?
The law regarding defamation is most commonly thought of in relation to media organisations and newspapers who publish false or negative information but the law can equally be applied to businesses and other organisations. Defamation is the publication or dissemination of false information which could damage another person’s reputation.
It’s very important for businesses and other organisations to be aware of the potential for defamation and be extremely careful when posting anything about another organisation or a current or former employee. Material posted on social media networks can be seen as defamatory if it:
  • Says that someone is dishonest or disloyal.
  • Makes personal statements about them which could cause someone else to think less of them.
  • Accuses them of doing something they didn’t.
  • Makes negative assertions about their capability of doing their job.

To count as defamation something doesn’t have to be overtly untrue, it can be argued that a statement which makes implications can also be considered to be defamation.

Make employees aware of the risks of social media
If you hear complaints that employees are posting negative comments about their co-workers on social media it’s important to take the allegations seriously. Social media harassment and defamation can lead to serious consequences for individuals and organisations. Make sure your employees are aware of the consequences of talking negatively about each other on Twitter or Facebook and help create a culture that discourages social media harassment and bullying to make your organisation a safer and healthier environment for everyone.

Workplace Bullying or Reasonable Management Action? - In Milan...

- Wednesday, March 05, 2014

As the sun rose over Sydney this morning, I got the news - WISE is going to Milan!

I will be presenting a paper at the 9th International Conference on Workplace Bullying and Harassment in Milan, Italy, on 16 June 2014. Below is the abstract I submitted and that got accepted;

WORKPLACE BULLYING OR REASONABLE MANAGEMENT ACTION? CASE ANALYSIS OF EXTERNALLY INVESTIGATED COMPLAINTS OF WORKPLACE BULLYING IN AUSTRALIA.
Author:  Stacey, Harriet.  WISE Workplace. Sydney, NSW, Australia

On 1 January 2014 The Fair Work Commission in Australia adopted a new jurisdiction over workplace bullying. Unifying the definition of workplace bullying at the national level the legislation is consistent with the Commonwealth Safe Work Regulatory agency ‘Safe Work”. Under this legislation workplace bullying is defined as ‘repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’. Specifically excluded from the definition of Workplace Bullying is behaviour, which constitutes reasonable management action. Determining when conduct is ‘reasonable management action’ or bullying is a key issue in the investigation of workplace bullying complaints and critical to minimising the risks of psychological injury in the workplace.

Employers struggle with early recognition of employees who are at risk of bullying through the inappropriate application of performance management strategies from those difficult employees who do not comply with reasonable requests or meet performance measures.

WISE Workplace is a private organisation that investigates complaints of bullying in government, not for profit and private organisations. Pulling from a sample of cases investigated by WISE Workplace over the two-year period of 2011 to 2013 this paper compares two cases of alleged bullying involving performance management and reasonable management action.

Case one involves an employee who experienced bullying over an 18-month period by her line manager. The target complained of threats to terminate her position; intimidating comments about whom she could speak to; unreasonable work expectations; delay in approving leave; failing to approve her performance plan. The target experienced long lasting/permanent psychological injury as a result of the bullying behaviour. The case was investigated and the bullying complaints substantiated.

Case two involves an employee who also alleged bullying over a 2 year period by her line manager. The target complained of a failure to approve leave; lack of procedural fairness in the investigation of complaints about her performance; phoning her whilst on sick leave; failing to be impartial in work allocation; making upsetting comments;  the allegations were found to be unsubstantiated on the basis of reasonable management action.

The paper details the two cases and compares and contrasts the circumstances of each case, how the employees were handled by their organisations in response to their complaints, the way the performance management was undertaken and details lessons to be learnt about identifying genuine cases of alleged workplace bullying early to avoid psychological injury developing or progressing.

Presenting author: Stacey Harriet e-mail: harriet@wiseworkplace.com.au

 

Flexible work: a privilege not a right

- Sunday, December 08, 2013

 
Are you or your employees in the dark about their work arrangements? Maybe it’s time to shed light on this. Formalising flexible working arrangements could help protect both employees and managers when it comes to drawing a line in the sand between bullying and harassment and reasonable management action.

A recent case brought against the South Australian Department of Health and Aging is a good example. In this case the court ruled that repeated requests to review flexible working arrangements given to an employee, after her father experienced a fall, did not amount to bullying and harassment and were reasonable under the circumstances.

The court also ruled that by allowing the employee’s flexible arrangements to continue unmonitored for three years, they had inadvertently led the employee to feel that her later start time was a right rather than a privilege. When efforts were made to amend the arrangements, she viewed them as bullying.

When making flexible working arrangements, the court recommended documenting the agreements in a formal way and ensuring follow-up times are set, to review how the arrangements are working for both the employer and the employee.

Spyrou V The State of South Australia (the Department of Health and Aging) 2013 SAEOT 11 (6 November 2013)